Court File and Parties
COURT FILE NO.: CV-20-00001074 DATE: 2022-02-11 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Guarav Tewari, Plaintiff AND: Gagan Sekhorn and Sekhorn Law Office, Defendants
BEFORE: Regional Senior Justice M.L. Edwards
COUNSEL: Guarav Tewari, Self-Represented Plaintiff Peter A. Downard and Rachel Laurion, Counsel for the Defendants
HEARD: In Writing
Costs Endorsement
[1]
Overview
In my Endorsement of January 18, 2022, I granted the Defendants’ motion striking out the Plaintiff’s statement of claim and invited costs submissions. I have now received those submissions.
[2]
Submissions of the Parties
The Defendants argue as the successful party that they should be entitled to substantial indemnity costs fixed in the amount of $20,769.68. The basis for an award of substantial indemnity costs is based on the allegations made against the Defendants in the statement of claim, specifically that the Defendants amongst other things manipulated laws and did not perform their legal fiduciary duty; used their legal profession to illegally manipulate facts against the Plaintiff; and illegally trained their client to give falsified information to defame the Plaintiff. The aforesaid are just an example of the allegations made by the Plaintiff against the Defendants.
3The Defendants argue that substantial indemnity costs should be awarded where there have been unproven allegations of fraud and dishonesty: see Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, at para. 26. The Defendants also refer this court to a decision of Glustein J. in Hordo v. Zweig, 2021 ONSC 2244, where Glustein J. in his Endorsement on Costs held that the Plaintiffs’ allegations were “particularly vitriolic” given the Plaintiffs’ allegations of fraud, conspiracy, criminal conduct, swearing a false affidavit and turning a blind eye to a criminal act.
4The Plaintiff in his written costs submissions continued with his unfounded spurious allegations against the Defendants, and in paragraph 1 of his submissions stated amongst other things:
It is to be noted that the Defendants coached its clients to conduct perjury under oath, fabricated evidence, encouraged its clients to defame Plaintiff and Defendants’ acts has ended up in potential criminal proceedings against the Plaintiff…
5The only real submissions made by the Plaintiff addressing the question of costs can be found in paragraph 5, where the Plaintiff suggests that the Defendants billed 45 hours to prepare for the motion and to attend on the motion while the Plaintiff only required 15 hours to respond to the Defendants’ motion.
6While the suggestion that the Defendants may have incurred more billable hours than that of the Plaintiff is a reasonable submission in responding to a demand for costs, the Plaintiff continued with his spurious allegations when he states:
…the Defendants have either spiked their billable hours to increase the cost of their frivolous motion or they have attempted (again) to cause mental agony to the Plaintiff by increasing their bills by continuing to manipulate the legal system to present frivolous costs of such a simple motion that the Defendants were pretty sure that it will be struck in a short motion…
[7]
Analysis
The Plaintiff in his written costs submissions also raises his alleged impecuniosity to respond to the Defendants’ demands for costs. The impecuniosity of a party is not specifically referred to in Rule 57.01 of the Rules of Civil Procedure as a factor that the court can take into account in assessing costs. That said, the guiding principle with respect to an award of costs is determining an amount that is fair and reasonable: see Davies v. Clarington (Municipality) et al., 2009 ONCA 722, at para. 52.
8In its determination of what is fair and reasonable, the court must also consider what the losing party could reasonably anticipate that he or she might pay as the losing party: see Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.). As for the issue impecuniosity, as Perell J. in G.C. v. Ontario (Attorney General), 2014 ONSC 1191 at para. 7 observed, there is divided authority as to whether impecuniosity is a relevant factor and can be considered in awarding costs. In considering impecuniosity as a factor, in my view it is part of the overall discretion that the court must exercise in arriving at a figure that is fair and reasonable as reflected in Davies.
9The Plaintiff has provided no real evidence with respect to his impecuniosity other than the submissions that he has made in writing.
10The Plaintiff is no stranger to our courts, and in fact is no stranger to the whole issue of absolute privilege which was the subject matter of my original Endorsement in striking out the Plaintiff’s statement of claim.
11The Plaintiff had made similar allegations to those made in this action in an unrelated action: see Tewari v. Sachdeva & Miller Thompson LLP, unreported Court of Appeal Docket M52586, where the Court of Appeal dismissed the Plaintiff’s appeal pursuant to Rule 2.1 of the Rules. It is clear to me that the Plaintiff, even as a self-represented individual, should have known that the statement of claim in the action before me would be struck on the basis of absolute privilege. By continuing to proceed as he did, he knew that he risked an award of costs against him.
[12]
Conclusion
In my view, this is an appropriate case to award substantial indemnity costs given the unfounded allegations that go to the core of a lawyer’s professional integrity. In fixing costs and applying the principles that I am required to apply in recognizing that there may have been some duplication in the hours expended by defence counsel, an appropriate award of costs in this case would be $17,500 all-inclusive.
Regional Senior Justice M.L. Edwards
Date: February 11, 2022